SCOTUS Nomination: No More Mr. Nice Guy.

In 1993 and 1994, when Justices Ruth Bader Ginsburg and Stephen Breyer went through their respective Supreme Court nominations– and confirmations, each refused to answer questions on controversial issues. Both were confirmed, nonetheless, by near-unanimous margins.

Let’s examine Ginsburg’s confirmation process, specifically.

The Federalist Society notes several precedents that the Ginsburg confirmation set (.pdf):

A. Questions must address specific real-world facts and specific issues, rather than hypotheticals or broad questions of policy or belief;

B. Nominees cannot be expected to give detailed, expert answers to questions involving every legal subject, as no person is an expert in everything;

C. Nominees (particularly sitting judges) can decline to answer by citing their experience in deciding cases based on the legal research and argument set forth in briefs, rather than answering general, non-case-specific questions;

D. Nominees can refuse to answer questions relating to specific cases or controversies likely to come before them as Justices of the Supreme Court

E. Nominees can give generalized answers to questions that involve judicial management or that address issues impacting the entire judiciary;

F. Nominees can decline to answer questions (or give general answers) in areas of the law that are evolving or otherwise in flux;

G. Nominees can decline to discuss their personal feelings or reactions to issues or decisions.

If and when President Bush’s nominee declines to answer a question, you can just bet that the groups with so much inertia (money, activist lists, etc.) behind them to oppose the nominee will scream and wail and gnash.

While these precedents can and should be applied to the Senate deliberations, they are not going to convince the increasingly far-left Senate Democrats to suddenly “play fair.” More importantly, demanding the game be played by 1993 rules is not going to work in the court of public opinion.

Justice Ginsburg declined to answer, or gave only generalized answers, to a vast number of the questions she was asked during her confirmation hearings. Despite this, Justice Ginsburg was confirmed by a vote of 96-3, which suggests that the Senate recognized her reasons for caution as valid and appropriate. In light of this precedent, the Senate and current judicial nominees should carefully apply those same reasons for caution (discussed above) to establish a common understanding of the rules for a confirmation hearing. This understanding will help in avoiding much of the delay and conflict that has become part of the confirmation process.

Gee willikers, gosh almighty, playing by the rules is fun!

Not.

While the Federalist Society’s heart is certainly in the right place, their assertion that we can all just reach a wonderful agreement to follow the precedents established during the Ginsburg nomination process is hopelessly naive. Expecting today’s liberal Democrats to abide by the rules of decorum established more than a decade ago is a recipe for complete disaster. It’s just not going to happen. Thus, even as our nominee himself or herself takes the high road, we must get down in the trenches and be prepared to knock some heads together if necessary.

Somehow, I tend to believe that the White House’s rhetoric about “both sides” needing to “tone it down” is a necessary part of the issue priming process, not a serious attempt to scold his allies on the right. Bush simply wants to remain dignified and allow the left to fire the first predictable shots. I also get the distinct feeling that the White House is well-prepared for the bloody fight that Senator Schumer has all but guaranteed.

During the confirmation hearings and votes for Clarence Thomas, I was too young to really know what was going on. I don’t know how he was treated. All I know is that my dad and I listened to the vote live on the radio, and he was pissed when Thomas got the nod. He’s not a racist, he’s just a liberal.

These “relevant” questions will not come. I watched some of the 9/11 hearings. All we saw was pontificating by members of the committee, getting two-minute soundbites with convenient cuttable pauses and clips to make sure the committee members made it onto the nightly news programs. Nothing that was said in those committee hearings made any difference.

The same with the upcoming Supreme Court hearings, once the President figures out who to nominate. In the houses of government, we’ve gone from getting things done to speechmaking, and from law-upholding to law-generating. Great news for our country indeed.

Reality check for Realitycheck: opinion pieces are by definition biased.

As are comments. Are you suggesting your own blatant bias negates any relevance your comments have?

AnonymousDrivelJuly 8, 2005

The Senate will have to engage the Constitutional option to confirm a “real”, potential Constitutionalist. You can count on it. Here’s hoping they will and not yield to moderation since that is doomed to failure under the current political atmosphere. The Democratic MINORITY will not support anyone that the Republicans would heartily endorse.

It’s hardly a matter of opinion that Senate Democrats have moved to the left since 1993. There are less Southern ones to check the overall leftism.

edJuly 8, 2005

Hmmm.

I’m not going to hold my breath waiting for Republicans to start playing “tough”. I’ve been waiting for 25 years for that to happen, and it hasn’t happened yet.

PhinnJuly 8, 2005

Don’t forget another precedent that Ginsburg’s nomination set — the idea that a President is NOT in any way obligated to appoint someone of the same ideological temperament as his or her predecessor.

In that case, centrist-conservative Byron White was replaced with the former general counsel for the ACLU.

Hey, rules are rules.

kevinoJuly 8, 2005

“Expecting today’s liberal Democrats to abide by the rules of decorum established more than a decade ago is a recipe for complete disaster. It’s just not going to happen.”

Unfortunately, you are totally right.
The Left have no moral, ethical, or legal standards. My God, look at the spectacle of the Thomas hearings, with Senator Edward (“A Blond in Every Pond”) Kennedy, the distinguished drunk from Massachusetts lecturing Thomas on minority rights. And who can forget the image of Fat Boy and his senile side-kick from the KKK raking Dr. Rice over the coals?

Senator Shumar’s phone conversation (if correctly reported) clearly indicates that he and his friends are gearing up for war. They smell blood, and they’re good to go. The GOP in general (and President Bush in particular), have no stomache for a fight.

They’ve already lost.

Strike the colors and run up a bedsheet.
Oops. It’s gone! Senator Byrd took our white flag to make a new hood.

fatmanJuly 8, 2005

Aw jeez, kevino. Did he have to take the whole sheet? His head’s not THAT big, is it?

Zsa ZsaJuly 8, 2005

Yes it is! Sen. KKK is so full of himself and his ego is sooooooooo big he has to use an entire bed sheet to cover it up!

Zsa ZsaJuly 8, 2005

Also… he might have to use it for the Statue he had errected of himself on the tax payers dime!

HesiodJuly 20, 2005

Of course, this analysis is completely irrelevent to a tabula rasa nominee like John Roberts.

Ginsburg and Breyer had extensive Appellate Court track records to be analyzed.

If Roberts had the same extensive judicial record those two nominees had, I’d agree that he should be given more leeway in answering questions.

But since he’s got very little record, he has an obligation to flesh out his judicial views and philosophy more thoroughly in his confirmation hearings.